In Chapter 5 of Democratic Rights, Corey Brettschneider continues his project of showing how the value theory of democracy generates support for individual rights that serve as substantive limits on the outcomes of democratic procedures. In this chapter, he asks how a democracy might justify the punishment of criminals, one of the most dramatic and severe forms of state coercion. In the course of answering this question, Brettschneider concludes that there are some forms of punishment that a democratic citizen reasonably could reject. A commitment to democracy, therefore, entails substantive limits on the state’s right to punish convicted criminals.
In this engaging chapter, Brettschneider elegantly and economically covers a lot of ground. The various arguments about the limits on the right to punishment are interesting in their own right, but they also usefully illuminate the wider theory of democratic contractualism. By following Brettschneider’s discussions of punishment, we get a better view of the kind of justificatory strategies his theory permits or denies. In the course of my discussion, I’ll try to raise questions not only about Brettschneider’s specific conclusions, but also about the wider theoretical issues that have already been nicely laid out by the discussants of the earlier chapters.
The basic question of the chapter is to what extent a democracy may legitimately punish convicted criminals. (We assume, for purposes of this chapter, that the procedures leading to conviction are just, and are as accurate as we can reasonably expect.) Following his general theory of democratic contractualism, Brettschneider approaches this question primarily by asking “which punishment a criminal qua citizen reasonably could accept” (97). The test for legitimate punishment is hypothetical, reasonable acceptance–not actual acceptance by criminals. Criminals are entitled to justification (on which more below), but not to an absolute veto. Consistently with Brettschneider’s broader emphasis on democratic citizens’ status as free and equal, he argues here that “this account of justification requires rights of criminals against punishments that undermine their status as citizens” (98).
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